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Torres v. Commissioner of Social Security

United States District Court, D. New Jersey

July 22, 2014

DEBRA A. TORRES, Plaintiffs,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM AND ORDER

PETER G. SHERIDAN, District Judge.

This matter is before the Court on the appeal of Plaintiff, Debra Torres from the decision of the Commissioner of Social Security denying her a period of disability insurance benefits. Disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has listed or can be expected to last for a continuous period of not less than 12 months. The issue is whether substantial evidence supports the Commissioner's decision that Plaintiff was not disabled from her alleged onset date of disability (May 29, 1999) through the date last insured (March 31, 2000) (Time Period).

One aspect of the substantial evidence standard that arises here is whether Plaintiff has met her burden of proof since the administrative record contains very little medical evidence of Plaintiff's alleged disabling impairments during the Time Period. There are x-rays and MRI reports from 1994, and another set from 2009, neither of which are within the Time Period. During oral argument, Plaintiff's counsel conceded that the evidence was "thin".

I.

During the Time Period, Plaintiff was a 40 year old female (d/o/b 12/6/58), with a ninth grade education. During the Time Period she worked as a delicatessen counter clerk at a Shop Rite Supermarket, and prior to that, she worked as a home health aide, and as a lunch packer at a grammar school. While working at Shop Rite, Plaintiff had back pain due to scoliosis. As a result, her hours were cut from full time (38 hours), to 16 hours, then to 8 hours per week. Finally her employment was terminated.

At the administrative hearing, Plaintiff testified about her health issues during the late 1990s. She testified that while at Shop Rite she "couldn't stand on [her] feet for eight hours, " and her lower back, arm and neck were "bothering" her when she was slicing lunch meat. Plaintiff emphasized that her pain occurred "in the lower part of [her] back, middle and then the top of [her] neck down;" and the pain was so intense she could not concentrate on what she was doing. Plaintiff could lift about a half-gallon of milk; but had issues lifting loaves of lunch meat which weighed approximately 17 pounds. She testified that she could only sit for about twenty minutes before experiencing pain. Moreover, "using [her] arms and holding [her] arms up causes pain into [her] neck." Plaintiff testified that her back pain also affected her at home and that she "could not stand... to do dishes... fold clothes... vacuum, [or] take the garbage downstairs.

Dr. German E. Malaret, a medical expert, testified at the administrative hearing. His review of the medical records of Englewood Hospital from 1994 confirmed that Plaintiff suffered from "thoracic vector scoliosis with a lumbar... scoliosis, in other words she has scoliosis in her back. It has been there for many, many, many years..." Dr. Malaret described scoliosis as "curvature of the back." It "bends to the right in the thoracic area and then the lumbar area is going to be bent to the left, that's - you've got an S shaped curve." Dr. Malaret opined that based on the severity of the scoliosis, Plaintiff could have performed light work during the Time Period. That is, Plaintiff could have lifted 20 pounds for 2.5 hours per day and 10 pounds for about 5.0 hours per day. In concluding same, his testimony was not crystal clear. For example, he testified as follows:

Q So you're saying that... the marked scoliosis this patient has and the problems she's complained of and apparently that doctors were treating her for, that she could have lifted 20 pounds throughout a - basically three, two and a half to three hours a day, and ten pounds the other six or five and a half to six?
A Well, you know, it's - 20 pounds occasionally, I don't know how [INAUDIBLE) that would be.
Q That's about two and a half hours a day, I believe.
A And ten pounds, frequently carry ten pounds.
Q For five hours a day?
A Well, she's not going to be carrying five hours repeatedly, that doesn't occur.
Q Well, I didn't ask you if it occurred, sir, I asked you could she do it, in your opinion.
A Not persistently, not five hours consistently, no.
Q Could she carry up to ten pounds up to three ...

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